United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-1511

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Larry L. Christiansen, *

*

Appellant, *

*

v. *

*

Harold W. Clarke, Director, * Appeal from the United States

Department of Correctional * District Court for the District

Services; and Dave Avery, * of Nebraska.

Superintendent, Community *

Corrections Center, Lincoln, *

Nebraska, *

*

Appellees. *

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Submitted: April 17, 1998

Filed: May 29, 1998

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Before BEAM, JOHN R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circuit

Judges.

___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Larry Christiansen, a former inmate of the Community Corrections Center in

Lincoln, Nebraska, was placed on work release approximately nine months prior to the

completion of his sentence. Before Mr. Christiansen was placed in the program, its
The Honorable David L. Piester, United States Magistrate Judge for the District 1

of Nebraska. See 28 U.S.C. § 636(b)(1)(B); see also Fed. R. Civ. P. 72(b). 

The Honorable Richard G. Kopf, United States District Judge for the District 2

of Nebraska.

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director required him to sign a statement acknowledging that costs for room and board

would be deducted from his inmate account for the duration of the work-release period.

Mr. Christiansen signed under protest, asserting that the director did not have the

statutory authority to withhold funds to cover the cost of a prisoner's room and board.

Upon the completion of Mr. Christiansen's sentence and his release from the program,

the prison withdrew $2,790 from his account. 

Mr. Christiansen filed suit in district court, alleging that the prison had deprived

him of his property without due process of law in violation of 42 U.S.C. § 1983,

§ 1985(3), and § 1988. The court allowed him to proceed in forma pauperis (IFP)

under 28 U.S.C. § 1915(a). Shortly thereafter, a magistrate judge recommended that 1

Mr. Christiansen's action be dismissed for failure to state a claim, on the ground that

Mr. Christiansen had no property interest in the wages that he earned while on work

release. The district court adopted the recommendation and dismissed the complaint

sua sponte, before service of process and without giving leave to amend it. See 28

U.S.C. § 1915(e)(2)(B)(ii). Mr. Christiansen appeals. We affirm the judgment of the

district court. 

2

I.

Mr. Christiansen makes two arguments. He first contends that 28 U.S.C.

§ 1915(e)(2)(B)(ii) is unconstitutional because it allows the district court to dismiss the

claim of an indigent prisoner plaintiff for failure to state a claim before service of

process and without leave to amend. Because a court may not generally dismiss the

claim of a paying plaintiff under Fed. R. Civ. P. 12(b)(6) before service of process and

without leave to amend, Mr. Christiansen argues that the statutory provision violates
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his rights to due process and equal protection. See U.S. Const. amend. XIV, § 1.

Second, he argues that the district court erred in holding as a matter of law that his

complaint did not state a claim. We address this second issue first.

Mr. Christiansen maintains that he was denied due process when the defendants

deprived him of his wages without statutory authority. As the district court noted,

however, Neb. Rev. Stat. Ann. § 83-184(3) gives the director of correctional services

the authority to collect from work-release inmates "such costs incident to the person's

confinement as the Director of Correctional Services deems appropriate and

reasonable." As the court held, moreover, because work release is a privilege that may

be granted at the director's discretion, see Neb. Rev. Stat. Ann. § 83-184(1)(b),

Mr. Christiansen did not have a right to work release, and thus he did not have a right

to the full amount of his salary. See Ervin v. Blackwell, 733 F.2d 1282, 1286 (8 Cir. th

1984).

We agree that under our holding in Ervin, because Mr. Christiansen's

participation in the work-release program was voluntary, and because he exchanged a

portion of his otherwise protected salary for participation in that program, he does not

have a constitutionally protected property right to the full amount of his salary. More

importantly, however, Mr. Christiansen has simply not stated a due process claim. He

does not complain that he was denied a hearing or that he was denied access to

constitutionally required procedures; he merely seeks restitution. If the prison violated

state law by deducting funds for unauthorized expenses, then Mr. Christiansen may file

a suit for conversion, if one is available, in an appropriate court. He has not, however,

alleged any facts that suggest that his right to due process was violated.

II.

Nor are we persuaded that 28 U.S.C. § 1915(e)(2)(B)(ii) is itself

unconstitutional. Mr. Christiansen asks us to determine whether the IFP statute

survives equal protection rational-basis scrutiny, and we find that it does. Under that
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standard, we review the statute to determine whether it is "rationally related to a

legitimate state interest." City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976). 

It is well settled that Congress has a legitimate interest in deterring meritless

prisoner litigation. There is abundant evidence that, since the first IFP statute was

enacted in 1892, prisoners' suits have accounted for both a disproportionate number of

claims filed under IFP statutes and a disproportionate number of meritless claims. See,

e.g., Roller v. Gunn, 107 F.3d 227, 230 (4 Cir. 1997), cert. denied, 118 S. Ct. 192

th

(1997) (noting that in the Fourth Circuit in 1995, IFP filings accounted for almost half

of the caseload, and that prisoners were responsible for 75 percent of those filings); see

also Nicholas v. Tucker, 114 F.3d 17, 20 (2 Cir. 1997), petition for cert. filed (U.S. nd

Oct. 9, 1997) ("[s]uffice it to say that federal courts spend an inordinate amount of time

on prisoner lawsuits, only a very small percentage of which have any merit"). In 1996,

Congress responded by passing the Prison Litigation Reform Act (PLRA), which

amended a previous version of § 1915 so that § 1915 now creates monetary and

procedural disincentives to the filing of meritless cases. Roller, 107 F.3d at 230-31.

We do not doubt that in preserving scarce judicial resources by deterring baseless,

frivolous, and malicious suits, Congress was furthering a legitimate state interest. See,

e.g., In re Sindram, 498 U.S. 177, 179-80 (1991) (per curiam), and Bankers Life and

Casualty Co. v. Crenshaw, 486 U.S. 71, 81-82 (1988).

Nor do we doubt that Congress chose means rationally calculated to accomplish

its intended end. The monetary provisions of the PLRA certainly withstand

constitutional scrutiny in that respect. See, e.g., Nicholas, 114 F.3d at 20-21, and

Roller, 107 F.3d at 233-34. Likewise, we believe that the PLRA's additional

procedural barriers, like the one at issue in this case, have a rational justification. This

provision merely raises the expected cost to a prisoner of filing a meritless lawsuit.

Because prisoners, even under the PLRA, initially pay a reduced filing fee (they

receive, in effect, an interest-free loan to pay the full filing fee), see 28 U.S.C.

§ 1915(b), and because prisoners have excessive amounts of free time on their hands,
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they are more likely than paying plaintiffs to file meritless suits. By allowing district

courts to dismiss all meritless claims before service of process and without giving leave

to amend, the statute reduces the cost of those suits to the judicial system. 

Even more importantly, however, because under the PLRA prisoners can file

only three frivolous, malicious, or meritless suits at the initially reduced rate, see 28

U.S.C. § 1915(g), the provision, by increasing the likelihood that a prisoner's meritless

claim will be dismissed, raises the expected cost to the prisoner of each such filing by

pushing him or her one step closer to initially having to pay the full filing fee. Thus,

because the provision both reduces the burdens on the judicial system and increases the

cost to prisoners of filing meritless claims, it is rationally related to the legitimate

interest that the statute seeks to further.

III.

Mr. Christiansen contends, however, that in Nietzke v. Williams, 490 U.S. 319

(1989), the Supreme Court held that courts may not dismiss meritless IFP claims

without adhering to the provisions of Fed. R. Civ. P. 12(b)(6). We believe that

Mr. Christiansen's reliance on Nietzke is misplaced. That case, in interpreting the IFP

statute before it was amended by the PLRA, holds only that the statute did not

authorize courts to dismiss suits, as frivolous, for failing to state a claim. Nietzke, 490

U.S. at 320, 326, 331. 

The case does contain a discussion of Congress's intent to put indigent and

paying plaintiffs on the same footing, id. at 329-30, but the holding of the Court was

simply that a complaint may fail to state a claim without being frivolous. Id. at 331.

The Court never intimated that the Constitution required Congress to place these

various plaintiffs on an equal footing; it stated only that putting them on an equal

footing was Congress's purpose in passing the statute. Id. at 330. Given the legitimate

state interest in deterring meritless claims, however, we believe, as we have said, that
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the Constitution certainly authorizes Congress to adjust its notion of "equal footing"

enough to inconvenience those who would take unfair advantage of the statute.

IV.

For the reasons stated, we affirm the district court.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.